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IP-Watch interns talk about their Geneva experience in summer 2013. 2:42.

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2. You understand and agree that Intellectual Property Watch is not responsible for any content posted by you or third parties. You further understand that IP Watch does not monitor the content posted. Nevertheless, IP Watch may monitor the any user-generated content as it chooses and reserves the right to remove, edit or otherwise alter content that it deems inappropriate for any reason whatever without consent nor notice. We further reserve the right, in our sole discretion, to remove a user's privilege to post content on our site. IP Watch is not in any manner endorsing the content of the discussion forums and cannot and will not vouch for its reliability or otherwise accept liability for it.

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5. IP Watch will not be liable for any loss including but not limited to the following (whether such losses are foreseen, known or otherwise): loss of data, loss of revenue or anticipated profit, loss of business, loss of opportunity, loss of goodwill or injury to reputation, losses suffered by third parties, any indirect, consequential or exemplary damages.

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9. These terms and your posts and contributions shall be governed and interpreted in accordance with the laws of Switzerland (without giving effect to conflict of laws principles thereof) and any dispute exclusively settled by the Courts of the Canton of Geneva.

The Politicization Of The US Patent System

The Washington Post story, How patent reform’s fraught politics have left USPTO still without a boss (July 30), is a vivid account of how patent reform has divided the US economy, preempting a possible replacement for David Kappos who stepped down 18 months ago. The division is even bigger than portrayed. Universities have lined up en masse to oppose reform, while main street businesses that merely use technology argue for reform. Reminiscent of the partisan divide that has paralyzed US politics, this struggle crosses party lines and extends well beyond the usual inter-industry debates. Framed in terms of combating patent trolls through technical legal fixes, there lurks a broader economic concern – to what extent ordinary retailers, bank, restaurants, local banks, motels, realtors, and travel agents should bear the burden of defending against patents as a cost of doing business.


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    Still A Long Way To Go For Anti-Counterfeiting Trade Agreement

    Published on 8 September 2011 @ 9:32 pm

    By for Intellectual Property Watch

    The Anti-Counterfeiting Trade Agreement negotiated last year will be open for signature for two years, until the first of May 2013. But while this looks like a long time, it may be needed by the 37 negotiating governments (including the United States, Japan, South Korea and the 27 European Union members) to iron out problems on their way to implementing what some rights owners welcomed as a possible new “gold standard” for the enforcement of intellectual property rights.

    EU Parliament: Questions Abound on ACTA

    In the European Parliament, the Committee on International Trade (INTA) has filed a request to its Legal Services regarding potential discrepancies between the much-debated agreement and existing EU legislation (the so-called EU acquis). INTA raised questions about the European Commission’s choice of the legal basis for the agreement and also potential violations of existing international obligations. A second request for a legal check now is being prepared by the Legal Affairs Committee with questions to be finalised this week, according to the office of Klaus-Heiner Lehne, chair of the Legal Affairs Committee.

    On top of the fact that the Parliament’s Legal Service will have to answer two sets of legal questions on ACTA and the ACTA negotiation process, skirmishes between the different EP party groups in both committees about what should be asked are showing the sensitivity of the ACTA dossier.

    Conservative INTA member Daniel Caspary (EPP) said broad and open questions would allow for a thorough check. Green Party members and advisers propose to ask more detailed questions and include a check on the compatibility of ACTA with European fundamental rights and the EU’s obligation to promote the rule of law in developing countries. ACTA favours the promotion of private IPR enforcement, according to Green Party members, something that they think of as creating a risk of overzealous enforcement without due legal process.

    Flurry of Studies on ACTA Compatibility with EU Law

    The Greens/EFA Internet Core Group in the European Parliament, and a collection of its individual members have brought out heavy artillery against ACTA by presenting a new analysis on “ACTA and access to medicines” by Sean Flynn of American University Washington College of Law, and a detailed legal opinion on the “compatibility of ACTA with the European Convention on Human Rights & the EU Charter of Fundamental Rights” from international law professor Douwe Korff (London Metropolitan University) and Oxford Internet Institute researcher Ian Brown. Both documents, which are open for comment, argue that ACTA falls short of European standards, materially and with regard to its negotiating process.

    Flynn concludes in his analysis that “ACTA’s process did not comply with Parliament mandates on transparency and stakeholder participation,” and that “ACTA does not comply with Parliament orders to exclude TRIPS-plus provisions for medicines.” ACTA in Flynn’s view will bring a shift in “’hard law’ rules and ‘soft law’ encouragements toward the interests of intellectual property rights holders” and increase the risk of “wrongful searches, seizures, lawsuits and other enforcement actions against legitimate suppliers of generic medicines.”

    Major issues, according to Flynn, are what he calls a “dramatic expansion of border measure requirements, including where border agents ‘suspect’ a label of being confusingly similar”, an imminent expansion of criminal seizures, even for suspected IPR violations, and also “third party enforcement requiring only a minimal level of suspicion at the provisional measures stage.” The latter “might deter multiple actors involved in the supply, manufacture, and global distribution of generic medicines.”

    Korff and Brown’s paper strongly criticizes the lack of clear safeguards in ACTA as a balance to TRIPS-plus measures, which, for example, make the wider scope of criminal offenses mandatory. Without a “de minimis rule” – protecting “innocent” and “trivial” IPR violations – a ban of private-sector three-strikes-regimes, limits to the disclosures and trans-border transfers of personal data and several procedural guarantees, ACTA’s compatibility with human rights provisions is questionable, the authors said. “The entire Agreement, in our opinion, (is) incompatible with fundamental European human rights instruments and standards,” they said.

    Despite this rather bleak conclusion, Korff and Brown make no recommendation as to whether ACTA should be brought before the European Court of Justice right away, something that civil rights organisations like the Foundation for a Free Internet Infrastructure have called for in a letter to Parliament. “This would have been the atomic bomb approach,” warned Caspary. “I think we should wait for the check from the Parliament’s Legal Services.” But what if Legal Services concludes that ACTA is not in line with the acquis?

    “The Commission would have lied,” Caspary said, and Parliament would have to decide what to do: go to the European courts, just change EU law to make it ACTA-compatible, or set conditions for the Parliament’s approval to specify how ACTA has to be implemented. These options were proposed recently in a study commissioned by INTA and recently leaked, according to which the Commission’s assurance that ACTA would leave the acquis untouched was not accurate.

    This study also refers to concerns that ACTA disregards conditions set by the Parliament in the discussions about a new directive on criminal enforcement against IPR violations, known as IPRED2. ACTA would “extend criminal measures of indirect commercial benefit, which may contradict the Parliament’s position that acts ‘carried out by private users for personal and not-for-profit purposes’ were to be excluded from the scope of the IPRED2,” the study said. A question targeting this very debate somehow got dropped from the list of INTA questions to the Legal Service, which some observers think could be intentional.

    ACTA as Executive Agreement?

    The European Union has no monopoly on a potentially protracted fight over ACTA. In the United States, experts are divided over the question if the US government can enact ACTA as a sole executive agreement without involving Congress. A paper by Oona A. Hathaway and Bernice Latrobe Smith, professors at Yale Law School, and Amy Kapczynski, a professor at University of California Berkeley Law School, warns against the potential reduction of democratic control over international lawmaking – and at the same time an expansion of the use of sole executive power. While some of ACTA’s provision would clearly fall within that scope, the authors write, others go beyond the traditional bounds of a sole executive agreement.

    The Office of the United States Trade Representative (USTR) passed on and did not answer any press questions, including about a timeline or if it will consider involving Congress in the approval process.

    It is what Flynn describes as “ACTA’s constitutional problem.” “Like other agreements that regulate foreign commerce and govern US congressional powers (including to make intellectual property rules), ACTA cannot bind the US without congressional approval,” Flynn said. “The USTR is saying that it will not seek congressional approval. So it cannot bind the US under US law. So ACTA will be a binding treaty under international law that the US has no authority to enter under US law.”

    This problem has also made MEPs on the other side of the Atlantic suspicious. How could they pass an agreement that might in the end not be binding for some of the negotiating partners? “A legal opinion must advise on whether the Parliament’s prerogatives are violated if it is asked for consent without certainty whether or not ACTA is binding on all its parties, in particular the United States and Mexico,” Green Party member Eva Lichtenberger added to the questions she wants to see answered by the Legal Services.

    Slow Implementation among Other Partners

    In Mexico, the Senate has rejected becoming an ACTA partner. But it is still open if the President chooses to overrule the criticism. For ACTA partner New Zealand, an announcement about next steps is expected in the next few weeks, according to a spokesperson from the Ministry of Economic Development. New Zealand’s Cabinet has set rules allowing that “certain international treaties (essentially multilateral treaties and major bilateral treaties of particular significance) will be presented to the House of Representatives for select committee consideration, before the Executive takes binding treaty action.”

    Not even Switzerland, one of the countries that seemed more at ease with ACTA and the whole negotiating process, has finalised the procedure for signing ACTA. “In Switzerland, the internal process preparing the decision for signature is ongoing,“ Juerg Herren, one of the Swiss ACTA negotiators from the Federal Office of Intellectual Property, told Intellectual Property Watch. There is no timeline, he said.

    For Japan, Tsuyoshi Kashimoto, director for intellectual property at the Ministry of Economy, Trade and Industry, explained that following the “Intellectual Property Strategic Program 2011,” the Japanese government is “now arranging for the signature. Then the government is moving on to the ratification procedure phase.”

    Academic Appeal to Rethink IP Strategies

    Meanwhile, as administrations and politicians try to move ACTA down the road to ratification – or not – academics and others in the United States this week published the “Washington Declaration on Intellectual Property and the Public Interest.” The declaration challenges the dominant direction of the negotiations on IP in the US, Flynn wrote to Intellectual Property Watch.

    “Most relevant to ACTA, the declaration calls for all international intellectual property agreements to be ‘subject to democratic checks and balances, including domestic legislative approval,” he said. The appeal goes far beyond this, though, recommending to put IPR in its place (and not above fundamental rights), to value openness and the public domain, to strengthen limitations and exceptions, to set public interest priorities for patent reform, to support cultural creativity, to check enforcement processes and require evidence-based policy making. The full declaration, which is open for signatures, is available here.

    Monika Ermert may be reached at info@ip-watch.ch.

     

    Comments

    1. Thank God It’s Fry Day | Knockoff Report says:

      [...] Still A Long Way To Go For Anti-Counterfeiting Trade Agreement [...]

    2. With ACTA, manipulation returns to the European Parliament | ACTA says:

      [...] This summer, the Chairman of the International Trade committee (INTA), Mr Vital Moreira, rewrote a question the INTA committee asked the Parliament’s Legal Services regarding ACTA (Anti-Counterfeiting Trade Agreement). The INTA Chairman among others things left [...]

    3. ACTA-bloggen » Schlyter ligger på för att fråga om ACTA till legal service blir korrekt says:

      [...] Läs mer; FFII  , IP-watch [...]


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    We welcome your participation in article and blog comment threads, and other discussion forums, where we encourage you to analyse and react to the content available on the Intellectual Property Watch website. By participating in discussions or reader forums, or by submitting opinion pieces or comments to articles, blogs, reviews or multimedia features, you are consenting to these rules.

    We welcome your participation in article and blog comment threads, and other discussion forums, where we encourage you to analyse and react to the content available on the Intellectual Property Watch website.

    By participating in discussions or reader forums, or by submitting opinion pieces or comments to articles, blogs, reviews or multimedia features, you are consenting to these rules.

    1. You agree that you are fully responsible for the content that you post. You will not knowingly post content that violates the copyright, trademark, patent or other intellectual property right of any third party or which you know is under a confidentiality obligation preventing its publication and that you will request removal of the same should you discover that you have violated this provision. Likewise, you may not post content that is libelous, defamatory, obscene, abusive, that violates a third party's right to privacy, that otherwise violates any applicable local, state, national or international law, that amounts to spamming or that is otherwise inappropriate. You may not post content that degrades others on the basis of gender, race, class, ethnicity, national origin, religion, sexual preference, disability or other classification. Epithets and other language intended to intimidate or to incite violence are also prohibited. Furthermore, you may not impersonate others.

    2. You understand and agree that Intellectual Property Watch is not responsible for any content posted by you or third parties. You further understand that IP Watch does not monitor the content posted. Nevertheless, IP Watch may monitor the any user-generated content as it chooses and reserves the right to remove, edit or otherwise alter content that it deems inappropriate for any reason whatever without consent nor notice. We further reserve the right, in our sole discretion, to remove a user's privilege to post content on our site. IP Watch is not in any manner endorsing the content of the discussion forums and cannot and will not vouch for its reliability or otherwise accept liability for it.

    3. By submitting any contribution to IP Watch, you warrant that your contribution is your own original work and that you have the right to make it available to IP Watch for all purposes and you agree to indemnify IP Watch, its directors, employees and agents against all damages, legal fees and others expenses that may be incurred by IP Watch as a result of your breach of warranty or of these terms.

    4. You further agree not to publish any personal information about yourself or anyone else (for example telephone number or home address). If you add a comment to a blog, be aware that your email address will be apparent.

    5. IP Watch will not be liable for any loss including but not limited to the following (whether such losses are foreseen, known or otherwise): loss of data, loss of revenue or anticipated profit, loss of business, loss of opportunity, loss of goodwill or injury to reputation, losses suffered by third parties, any indirect, consequential or exemplary damages.

    6. You understand and agree that the discussion forums are to be used only for non-commercial purposes. You may not solicit funds, promote commercial entities or otherwise engage in commercial activity in our discussion forums.

    7. You acknowledge and agree that you use and/or rely on any information obtained through the discussion forums at your own risk.

    8. For any content that you post, you hereby grant to IP Watch the royalty-free, irrevocable, perpetual, exclusive and fully sub-licensable license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display such content in whole or in part, world-wide and to incorporate it in other works, in any form, media or technology now known or later developed.

    9. These terms and your posts and contributions shall be governed and interpreted in accordance with the laws of Switzerland (without giving effect to conflict of laws principles thereof) and any dispute exclusively settled by the Courts of the Canton of Geneva.

     

     
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